Kim Zetter | 5.23.2015
A LAST-MINUTE BID to reform NSA spying before lawmakers break for a week-long recess failed early Saturday morning after hours of debate and filibuster overnight when Senate lawmakers voted 57-42 against the USA Freedom Act.
Senator Mitch McConnell then tried to lead an effort to extend the key provision in the Patriot Act that has been used to justify NSA spying, which is set to expire on June 1. But that vote also failed. Temporarily, that means the government’s bulk collection of phone records from U.S. telecoms is on hold.
USA Freedom Act aimed to put an end to that program, first uncovered by USA Today in 2006 and re-exposed in 2013 by NSA whistleblower Edward Snowden.
The bill called for records to be retained by telecoms and would have forced the NSA to obtain court orders from the Foreign Intelligence Surveillance Court to gain access to them. It also would have required the agency to use specific search terms to narrow its access to only relevant records.
A companion bill passed in the House earlier this month by a landslide vote of 338 to 88 but encountered trouble in the Senate where opponents said it would handicap the fight against terrorism and harm national security.
Proponents of the bill were pushing to get it passed before lawmakers could vote on whether or not to re-authorize sections of the US Patriot Act. Section 215, which the government has long said legally justifies its collection of phone records, is set to expire at midnight June 1. Even after this failure, Lawmakers remain under pressure to re-authorize it before then. They plan to reconvene on May 31 after their break to try again.
Supporters of the USA Freedom Act hoped to get this bill passed to counter Section 215 and reform the collection program that Section 215 purportedly legalizes. But the Second Circuit Court of Appeals introduced a ripple when it ruled earlier this month that Section 215 cannot be used to justify the bulk records collection program. The three-judge panel said that such collection was never intended by lawmakers when they drafted the Patriot Act, and that the government could not use it to legally justify the mass collection of US phone records.
This left lawmakers with the choice of either revising Section 215 so that it is written in a way that does authorize bulk collection, or re-authorize it as written, leaving the government with no legal coverage for the NSA’s phone records collection program.
The USA Freedom Act was intended as a compromise—a bill that would authorize the NSA to still obtain access to phone records that are relevant to an investigation but without allowing the spy agency to collect massive records to do so.
Civil liberties groups like the Electronic Frontier Foundation were divided in their support of the USA Freedom Act. EFF had supported the legislation until the appeals court ruling about Section 215. EFF hoped the ruling would embolden the Senate to revise the bill to provide even stronger reforms of the phone records program.
Most importantly, EFF wanted lawmakers to include language that would provide a strict interpretation of key terms in the statute such as “relevant” and “investigation,” to prevent the NSA from using loose interpretations to keep collecting massive amounts of data. “This easy task will make sure that the law is not read as rejecting the Second Circuit’s reading and will help ensure that the USA Freedom Act actually accomplishes its goal of ending bulk collection,” EFF wrote in the post last week.
The bill had the support of the White House, which had said it balanced the need for surveillance with the preservation of constitutional protections for Americans. Attorney General Eric Holder and even the Director of National Intelligence James Clapper had both expressed support for it.
Lawmakers who opposed it, however, said it would handicap the NSA and allow terrorist groups to prosper. In a Wall Street journal op-ed, former NSA and CIA Director Gen. Michael Hayden and former U.S. Attorney General Michael Mukasey called it the kind of “NSA Reform That Only ISIS Could Love,” referring to the militant group known as the Islamic State of Iraq and Syria that is terrorizing parts of the Middle East.
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